State v. Gary F.

• Decision Date: 28 June 1993
• Docket Number: No. 21412,21412
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. GARY F., Infant; Debbie F., Mother, Defendants Below, Gary F., Defendant Below, Appellant.

Page 793

432 S.E.2d 793

189 W.Va. 523

STATE of West Virginia, Plaintiff Below, Appellee, v. GARY F., Infant; Debbie F., Mother, Defendants Below Gary F., Defendant Below, Appellant.

No. 21412.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1993.

Decided June 28, 1993.

Syllabus by the Court

1. The continuing disclosure requirement imposed by Rule 16 of the West Virginia Rules of Criminal Procedure applies to juvenile transfer proceedings in the same manner as it applies to criminal proceedings.

2. "Our traditional appellate standard for determining whether the failure to comply with court[-]ordered pretrial discovery is prejudicial is contained in Syllabus Point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980), and is applicable to discovery under Rule 16 of the Rules of Criminal Procedure. It is summarized: The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case." Syl. Pt. 1, State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988).

3. A juvenile is denied his constitutional right to confront his accusers when a critical witness, who has not been demonstrated as unavailable pursuant to the rules of evidence, is permitted to testify by telephone during a transfer hearing.

4. " ' "Before transfer of a juvenile to criminal court, a juvenile court judge must make a careful, detailed analysis into the child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and other similar personal factors." W.Va.Code, 49-5-10(d).' Syl. Pt. 4, State v. C.J.S., 164 W.Va. 473, 263 S.E.2d 899 (1980), overruled in part on other grounds [in] State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980) and State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981)." Syl. Pt. 2, State v. Sonja B., 183 W.Va. 380, 395 S.E.2d 803 (1990).

Larry Bonham, Asst. Atty. Gen., Charleston, for appellee.

Carolyn Sue Daniel, Shepherdstown, for appellant.

WORKMAN, Chief Justice:

Appellant Gary F. appeals from an order of the Circuit Court of Jefferson County entered on June 1, 1992, transferring him from the court's juvenile jurisdiction to criminal jurisdiction pursuant to West Virginia Code § 49-5-10(d)(4) (1992) ¹ in connection with charges of aggravated robbery. Because we conclude that Appellant's due process rights were violated by allowing a critical witness to testify by telephone as part of the transfer hearing, we reverse the decision of the lower court and remand this matter for further proceedings.

On January 2, 1992, Appellant, then sixteen years old, was arrested and charged with committing the crimes of aggravated robbery, burglary, larceny, and battery in Jefferson County, West Virginia. Following the filing of the State's motion on January 16, 1992, a hearing was held on January 27, 1992, to determine whether Appellant's case should be transferred to the court's criminal jurisdiction. The transfer hearing was continued to permit the psychological evaluation requested by Appellant. Upon the completion of the psychological report, the circuit court heard evidence with regard to the issue of transfer on March 24 and 25, 1992. The circuit court transferred Appellant to the court's criminal jurisdiction by order entered on June 1, 1992, after finding probable cause to believe that Appellant had committed aggravated robbery. See W.Va.Code § 49-5-10(d)(4), supra note 1. Seeking a reversal of the transfer order, Appellant, who is currently incarcerated at the Eastern Regional Juvenile Detention Center, initiated this appeal pursuant to West Virginia Code § 49-5-10(f). ²

Appellant seeks to reverse the transfer order on four grounds: (1) the State's failure to disclose a witness; (2) the telephonic testimony of a State witness; (3) the holding of the transfer hearing after the statutorily-prescribed seven-day period; and (4) the trial court's failure to make specific findings regarding Appellant's maturity emotional attitude, and home environment. Addressing these assignments of error in order, we first examine the alleged error regarding the State's non-disclosure of a witness.

Appellant complains that the State ignored its duty to supplement its initial witness list pursuant to Rule 16(c) of the West Virginia Rules of Criminal Procedure. ³ In responding to the various discovery requests of Appellant, the State provided a list of witnesses and corresponding statements from those witnesses to Appellant on January 24, 1992. The State subsequently obtained a statement from co-defendant Joseph Riggs (hereinafter sometimes referred to as "Joey" or "Mr. Riggs") on January 28, 1992, but did not supplement its prior discovery responses to identify Mr. Riggs as a witness or to produce his statement. The State does not dispute that it failed to supplement its witness list to include the name of Joseph Riggs. The State does dispute, however, that it failed to timely provide Appellant with a copy of Mr. Riggs' statement based on its tender of the statement to Appellant at the beginning of the transfer hearing on March 24, 1992.

The State's response to Appellant's contentions is two-fold: (1) The Rules of Criminal Procedure are inapplicable; and (2) Mr. Riggs' testimony had no prejudicial effect on Appellant's case. As to the applicability of the West Virginia Rules of Criminal Procedure to juvenile proceedings, Rule 54 of those rules states that: "Except as expressly provided within these rules, they do not apply to proceedings under West Virginia Code, Chapter 49, Article 5, Section 1, et seq.--juvenile delinquency--so far as they are inconsistent with that statute." W.Va.R.Crim.P. 54(b)(3). The State reasons that such an inconsistency is presented by the language of Rule 16(a)(1)(E) of the West Virginia Rules of Criminal Procedure which requires that "the state shall furnish to the defendant a written list of names and addresses of all state witnesses whom the attorney for the state intends to call in the presentation of the case in chief...." W.Va.R.Crim.P. 16(a)(1)(E) (emphasis supplied). According to the State, the "case in chief" language contained in Rule 16(a)(1)(E) necessarily limits the rule's applicability to an actual criminal trial as contrasted to a juvenile transfer hearing. Finding no logical reason to so limit the application of Rule 16(a)(1)(E) of the West Virginia Rules of Criminal Procedure, we reject the State's argument that Rule 16(a)(1)(E) presents the type of inconsistency referenced by Rule 54(b)(3). See W.Va.R.Crim.P. 54(b)(3). Accordingly, we find that the continuing disclosure requirement imposed by Rule 16 of the West Virginia Rules of Criminal Procedure applies to juvenile transfer proceedings in the same manner as it applies to criminal proceedings. See W.Va.R.Crim.P. 16(c), supra note 3.

The State argues that its late disclosure of Mr. Riggs as a witness does not amount to reversible error because it had no prejudicial effect on Appellant's case. This Court first announced the standard for determining when non-compliance with a discovery request constitutes reversible error in syllabus point two of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980):

When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.

Id. at 547, 270 S.E.2d at 174. ⁴ We elaborated on this standard in State v. Miller, 178 W.Va. 618, 363 S.E.2d 504 (1987), by explaining that "[t]he threshold inquiry is to 'take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance [or recess if the trial has begun], and any other relevant circumstances.' " Id. at 625, 363 S.E.2d at 511 (quoting 2 Charles A. Wright, Federal Practice and Procedure § 260 (1982) and footnote omitted). In State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988), this Court modified syllabus point two of Grimm, by combining it with syllabus point 4 of Miller:

Our traditional appellate standard for determining whether the failure to comply with court[-]ordered pretrial discovery is prejudicial is contained in Syllabus Point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980), and is applicable to discovery under Rule 16 of the Rules of Criminal Procedure. It is summarized: The non-disclosure is prejudicial where the defense is surprised on the material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.

179 W.Va. at 625, 371 S.E.2d at 346 and Syl. Pt. 1.

Pursuant to the "threshold inquiry" standard established in Miller, we first examine why the State failed to disclose Mr. Riggs as a potential witness. See 178 W.Va. at 625, 363 S.E.2d at 511. When questioned by the court at the transfer hearing regarding the non-disclosure, the State responded: "Your Honor, at the time we answered discovery, the statement was not available to our office. It had not been taken. And at that time we were unaware that Mr. Riggs would be a witness." Because the trial court did not pursue this area any further, we have no record on the issue of when the State decided to call Joey Riggs as a witness. Unless the State did decide literally at the last moment to call Joey Riggs, it had an ongoing obligation to supplement its prior witness list. Because the record was not more fully developed on this issue, any further analysis by this Court would be based on mere speculation.

Continuing the analysis suggested in Miller, we next...